David A. Bell is partner in the corporate and securities group at Fenwick & West LLP. This post is based on portions of a Fenwick memorandum titled Results of the 2018 Proxy Season in Silicon Valley—A Comparison of Silicon Valley 150 Companies and the Large Public Companies of the Standard & Poor’s 100.

In the 2018 proxy season, 143 of the technology and life sciences companies included in the Fenwick Silicon Valley 150 Index (SV 150) and 99 of the S&P 100 companies held annual meetings that typically included voting for the election of directors, ratifying the selection of auditors of the company’s financial statements and voting on executive officer compensation (“say-on-pay”).

Annual meetings also increasingly include voting on one or more of a variety of proposals that may have been put forth by the company’s board of directors or by a stockholder that has met the requirements of the company’s bylaws and applicable federal securities regulations.[1]

Significant Findings

Among the key findings are:

Annual Meeting Participation

An average of approximately 89.1% of shares of SV 150 companies was represented in person or by proxy at company annual meetings during the 2018 proxy season, similar to 2016. However, in addition to the approximately 10.9% not represented, an additional 14.5% were represented via proxy by brokers who did not receive instructions on voting for the bulk of matters for which broker discretionary voting is not permitted. This compares to 12.8% not represented and 13.9% broker non-votes in the S&P 100 in the same period.

The ranges of representation and voting, though, were somewhat broader in the SV 150 than the S&P 100 (e.g., 52.9% –100% voting in the SV 150, compared to 71.3% – 93.9% voting in the S&P 100).

Director Elections

In the vast majority of cases, the elections of directors continue to be uncontested, with the median of average support for each company’s directors at approximately 97% for both groups. All but one director at SV 150 companies, and all directors at S&P 100 companies, had received more “for” votes than “against” or “withheld” in uncontested elections,

Only one of the SV 150 companies and two of the S&P 100 companies had a contested election at its annual meeting in the 2018 proxy season (compared to one each in 2017 and none in S&P 100 in 2017).

In the SV 150, the dissident stockholder was able to elect two of the three candidates sought at Natus Medical.

In the S&P 100, the dissident was able to have its candidate appointed after very narrowly losing the stockholder vote at Procter & Gamble, and Broadcom was forced to withdraw its full slate for Qualcomm’s board at the 11th hour following CFIUS review.

Say-on-Pay

Opposition to named executive officer compensation reached 15% or more of votes cast (ignoring abstentions and broker non-votes) at 22.8% of SV 150 companies (compared to 13.8% of S&P 100 companies). Within those SV 150 companies with relatively lower levels of support, opposition reached 30% or more at 15 companies (of which nine had opposition of 40% or more, including seven companies where opposition exceeded 50%).

Seven companies in the SV 150, and four in the S&P 100, lost the say-on-pay vote.

Other Proposals Voted On

Setting aside director elections, say-on-pay (as well as say-on-frequency) and auditor approval voting, stockholders at SV 150 companies were asked to vote on one other matter per company on average, while stockholders at S&P 100 companies averaged 2.5 other matters voted on. The difference is primarily driven by the fact that stockholder proposals are primarily a large company phenomenon. There were only four such proposals voted on by stockholders outside of the top 50 companies in the SV 150.

Company Proposals

Excluding director elections, say-on-pay (as well as say-on-frequency) and auditor approval voting, stockholders at SV 150 companies voted on 86 company-sponsored proposals in the 2018 proxy season, primarily in compensation-related subjects, as well as some governance matters (compared to 56 such proposals at S&P 100 companies).

Stockholder Proposals

The stockholder-sponsored proposals voted on in the SV 150 generally focused on governance matters or policy issues (this was also true in the S&P 100).

The average support for stockholder-sponsored proposals was approximately 31.9% at the SV 150 companies (compared to approximately 27.3% at S&P 100 companies).

The most common topic for stockholder-sponsored proposals in the SV 150 were proxy access (eight proposals, two of which succeeded) and anti-discrimination/diversity (eight proposals, none of which were successful).

The most common such topic in the S&P 100 was regarding political/lobbying activities (31 proposals, none of which succeeded).

In a number of instances the report also presents data showing comparison of the top 15, top 50, middle 50 and bottom 50 companies of the SV 150 (in terms of revenue), [3] allowing for a more carefully tailored view of the activity and results as they are impacted by company size or scale, as well as more relevant comparison to peers (i.e., the S&P 100 compared to their peers in the top 15 of the SV 150).

Endnotes

1Director elections at each company were treated as a single matter, irrespective of the number of directors being elected.(go back)

2To be included in the data set for a particular “proxy season,” the definitive proxy statement for a company’s annual meeting generally must have been filed by the company with the Securities and Exchange Commission (SEC) during the twelve months ended June 30 of that year (i.e., the proxy statements included in the 2018 proxy season survey were generally filed with the SEC from July 1, 2017 through June 30, 2018 for the 2018 proxy season), irrespective of when the annual meeting was actually held (the annual meetings were usually held about two months following the filing of the proxy statement).(go back)

3The top 15, top 50, middle 50 and bottom 50 companies of the SV 150, include companies with revenue in the following respective ranges: $13B or more, $1.7B or more, $400M but less than $1.6B, and $103M but less than $399M. The respective average market capitalizations of these groups are $220B, $81B, $3.4B and $1.3B.(go back)

Silicon Valley and S&P 100: A Comparison of 2018 Proxy Season Results 2018-10-27T10:08:15-04:00 2018-10-29T14:56:52-04:00Harvard Law School Forum on Corporate Governance and Financial Regulation